Arzu v. Colvin

Filing 23

MEMORANDUM AND ORDER granting 14 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. For the reasons set forth above, the plaintiff's motion for judgment on the pleadings (Docket no. 14) is granted, the defendant's cross-motion (Docket no. 19) is denied, and the case is remanded to the Commissioner solely for the calculation of benefits. (Signed by Magistrate Judge James C. Francis on 4/1/2015) Copies mailed by chambers (kko) Modified on 4/1/2015 (kko).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MARLON ARZU,
:
:
Plaintiff,
:
:
- against :
:
CAROLYN W. COLVIN, Acting
:
Commissioner, Social Security
:
Administration,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

14 Civ. 2260 (JCF)
MEMORANDUM
AND ORDER

The plaintiff, Marlon Arzu, brings this action pursuant to
section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. §
405(g), seeking review of a determination of the Commissioner of
Social

Security

(the

“Commissioner”)

finding

that

he

is

not

entitled to disability insurance benefits for the period of October
10, 2007, through March 31, 2012.

The parties have submitted

cross-motions for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure. For the reasons set forth
below, the Commissioner's decision is vacated in part and the case
is remanded to the Social Security Administration (the “SSA”) for
further proceedings consistent with this opinion.1

1

The parties have consented to my jurisdiction for all
purposes pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal
Rules of Civil Procedure.
1

Background
A. Personal History
Marlon Arzu was born on November 14, 1972.
lives at home with his wife and children.

(R. at 504).2

He

Mr. Arzu is fluent in

English, but his first language is Spanish.

(R. at 506).

He has

completed at least eleventh grade, and from 1990 to 1993, he worked
as a security guard for a stock company.
goes

to

church

with

his

mother

(R. at 114).

nearly

every

occasionally attends other social functions.

Mr. Arzu

week

and

(R. at 508).

he

He no

longer participates in any sports, but periodically goes to the
park with his children.

(R. at 508-09, 511).

B. Medical History Prior to 2010
Mr. Arzu was born with congenital scoliosis, and in 1989 he
had straightening rods implanted.

(R. at 180, 356, 509).

On

January 11, 2006, the plaintiff underwent surgery to remove some of
the

hardware

Diseases.

at

the

(R. at 356).

New

York

University

Hospital

for

Joint

During that procedure, Dr. Jeffrey Spivak

performed a decompressive lumbar laminectomy (R. at 356-58).

The

surgery was required because of lower extremity pain and advanced
disk degeneration at L4-5.

(R. at 356).

“stable,”

necessary

2

but

surgery

was

The degeneration was

because

“R.” refers to the Administrative Record.
2

of

“significant

stenosis” at L3 and L4-5 and the failure of other treatment to
alleviate Mr. Arzu’s leg pain.

(R. at 357).

The medical records indicate that on January 24, 2006, Mr.
Arzu’s leg pain had been relieved and he reported no back pain.
(R. at 153). On February 21, 2006, he requested a different brace,
but still reported no pain.

(R. at 152).

On April 4, 2006, after

beginning physical therapy, Mr. Arzu complained of occasional back
spasms, but his back and leg pain had improved.
Neurontin and Skelexin.

(R. at 150).

He was prescribed

Mr. Arzu returned to the

Hospital for Joint Diseases on July 25, 2006, and reported right
thigh and leg pain which was not relieved with Neurontin.
148).

(R. at

On September 5, 2006, he complained of back pain, and

straight leg raising3 was positive on the right side.

(R. at 146).

Later, in October 2006, Mr. Arzu reported feeling better after
physical therapy and treatment with muscle relaxants. Straight leg
raising was negative, he reported pain only when bending, and he
was given permission to travel by train.

(R. 144-45).

On January

23, 2007, Mr. Arzu had a muscle strength rating of 5/5, straight

3

Straight leg raising is a medical test performed in either
supine position or the sitting position. The test is positive when
the leg is raised and pain is present. A positive result indicates
nerve root compression or tension. See Straight Leg Raising Test,
at
The
Free
Dictionary,
available
http://medical-dictionary.thefreedictionary.com/Lasegue+test. (last
visited March 24, 2015).
3

leg raising was negative, and motor strength was intact.

Indeed,

the plaintiff reported that even though he had a dull ache in his
legs in the morning, and a pain level of 4-5 out of 10, his
symptoms were improving.

(R. at 143.)

On August 14, 2007, Mr.

Arzu had full motor strength, he had good toe- and heel-walk,
sensation was intact, and he displayed no nerve root tension signs.
Yet, he had mild tenderness to palpation and his forward lumbar
flexion was limited to 1/4 to the floor.

(R. at 142).

The plaintiff saw Dr. Jamshid Sheikh on November 14, 2007 for
a consultative examination.

Dr. Sheikh recorded that Mr. Arzu was

71 inches tall and weighed 176 pounds.

His blood pressure was

160/94 and he walked with a normal gait.

He could squat fully,

used no assistive devices, and his strength was 5/5 in the upper
and lower extremities. There was full range of motion of the hips,
knees, ankles, shoulders, elbows, forearms, and wrists bilaterally.
(R. at 166-67).

Dr. Sheikh opined that the plaintiff had “mild

limitations with respect lifting, pushing, pulling, and carrying
heavy loads,” but no other physical limitations.

(R. at 168).

Mr. Arzu returned to work stocking shelves prior to seeing Dr.
Philip J. Glassneer on March 4, 2008, at the Hospital for Joint
Diseases Clinic.

That day he sought treatment for back pain which

occasionally radiated to his lower left extremity.
worsened with heavy overhead lifting.
4

The pain

(R. at 810, 812).

Dr.

Glassneer noted that there were no “hard findings” explaining the
back pain.

(R. at 810, 812).

He recommended that the plaintiff

could return to work but should limit overhead lifting until the
pain subsided.

(R. at 810, 812).

On February 24, 2009, Mr. Arzu again visited the Hospital for
Joint Diseases.

On that date, he informed Dr. Scott Robert Hadley

that his back pain had been constant for the prior six months.

(R.

at 808). It worsened while sitting and was relieved with standing.
Prior to seeing Dr. Hadley, Mr. Arzu attended “back school”4 which
relieved some of his pain.
by February 24, however.

He had stopped going to “back school”

(R. at 808).

Dr. Hadley advised Mr. Arzu

that he could return to work, but that he should refrain from any
heavy lifting or bending.

(R. at 808).

Two months later, on April 21, Mr. Arzu saw Dr. Bryan C. Ding
at the Hospital for Joint Diseases complaining of lower back pain.
Dr. Ding recommended an epidural steroid injection, prescribed
physical therapy, and scheduled an MRI.

(R. at 390).

The MRI took place on April 26, 2009, and imaging revealed
mild

central

canal

stenosis

at

L4-5,

posterior

fusion

with

instrumentation at L3, and a persistent marked levoconvex lumbar

4

This is a training protocol for patients with back pain. It
consists of education programs and exercise regimens. See Back
School, Physiopedia, available at www.physio-pedia.com/Back_School
(last visited March 31, 2015).
5

curvature at L2.

(R. at 804-05).

Additionally, the MRI showed a

new mass lesion compressing the descending right L5 nerve root in
the L5 lateral recess.

This mass lesion was thought to represent

a complex synovial cyst or a sequestered disc fragment.

(R. at

805).
On June 30, 2009, Mr. Arzu saw Dr. Catherine Noelle Laible at
the Hospital for Joint Diseases.

Again he reported feeling lower

back pain. “Back school” had resolved his pain, but he had not
attended since the previous year.

She prescribed Celebrex and a

thoracic lumbar sacral orthosis back brace.

(R. at 801).

On September 22, 2009, Mr. Arzu complained of lower back and
left leg pain.

Dr. Justin Park noted that the plaintiff had not

been to physical therapy for over four years, did not receive his
lumbar epidural injection, and had stopped taking Celebrex and
wearing his back brace.5

(R. at 388).

The plaintiff claimed that

prior lumbar epidural injections did not help and stated that he
stopped taking Celebrex because it made him sleepy and stopped
wearing the back brace because it was digging into his thighs. (R.
at 388).

The examination revealed that straight leg raising was

negative, and Dr. Park recommended “back school.”

(R. at 389).

Mr. Arzu again returned to the Hospital for Joint Diseases on

5

Mr. Arzu testified that he discontinued physical therapy
because he was no longer covered by Medicaid. (R. at 62).
6

November 10, 2009.

He sought treatment for his continued low back

pain from Dr. Deepan N. Patel.

Mr. Arzu reported that the 2006

surgery helped with his pain, but did not resolve it completely.
He told Dr. Patel that 90% of his pain was in his back and 10% was
in his left leg.
he lay supine.

The pain worsened at night, but was relieved when
(R. at 796).

Mr. Arzu rated his pain as an 8 on a

scale from 1 to 10, yet when medicated, the pain dropped to a 3.
(R. at 797).

Dr. Patel advised the plaintiff to avoid strenuous

activity and maintain normal activities interspersed with short
periods

of

rest.

prescribed Naproxen.

He

also

recommended

physical

therapy

and

(R. at 796-98).

C. Medical History From 2010 to April 1, 2012
Dr. T. Stanley is an orthopedic spine specialist, and on
January 5, 2010, he completed a medical source statement concerning
Mr. Arzu’s ability to perform work-related activities. (R. at 395401).

In the report, Dr. Stanley opined that Mr. Arzu could lift

and carry up to ten pounds occasionally.

(R. at 395).

He also

concluded that Mr. Arzu could sit for one hour, stand for 30
minutes, and walk for 15 minutes at a time without interruption.
In addition, Mr. Arzu could sit for eight hours, stand for one
hour, and walk for 20 minutes total in an eight-hour day.

He did

not require the use of an assistive device to ambulate and he could
walk one-half block without an assistive device. (R. at 396). Dr.
7

Stanley opined that the plaintiff could use his hands and feet
continuously.

(R. at 397).

Mr. Arzu could continuously crawl,

occasionally balance, kneel, and climb stairs, ramps, ladders, or
scaffolds.

(R. at 398).

Dr. Stanley also opined that Mr. Arzu

could only occasionally operate a motor vehicle, and could never
work near vibrations or at unprotected heights.

(R. at 399).

Finally, Dr. Stanley reported that Mr. Arzu could go shopping,
travel unaccompanied, use public transportation, feed himself, sort
files, and care for his personal hygiene, but he could not walk one
block at a reasonable pace on rough or uneven surfaces.

(R. at

400).
On April 13, 2010, Mr. Arzu returned to the Hospital for Joint
Diseases complaining of low back pain and saw Dr. Randy Cohn.

Dr.

Cohn noted that Mr. Arzu had been noncompliant with physical
therapy for several years, and he had a lengthy discussion about
the necessity of the therapy.

(R. at 794).

On April 22, 2010, Frederick Daniels, Mr. Arzu’s physical
therapist, reported to Dr. Cohn that the plaintiff complained of a
pain rating of 10 out of 10, and that he was experiencing spasms
throughout the spine.

(R. at 751).

The Division of Disability Determination referred Mr. Arzu to
Dr. Eugene Edynak for an orthopedic examination on May 10, 2010.
Dr. Edynak’s report indicated that the plaintiff had full range of
8

motion of his hips, knees, and ankles bilaterally.

(R. at 754).

Both his upper and lower extremities had strength at 5/5 in
proximal and distal muscles bilaterally, and there was no muscle
atrophy or joint effusion, inflammation, or instability.
753-754).

(R. at

Hand and finger dexterity was intact and grip strength

was 5/5 bilaterally.

(R. at 753).

Dr. Edynak recorded that Mr.

Arzu could walk for one and one-half blocks, his back pain rated at
6 on a scale of 1 to 10, and that his medication lowered the pain
to a rating of 4 out of 10.

(R. at 752).

Mr. Arzu’s lateral

flexion was 20 degrees to the left, and 20 degrees to the right.
And his lateral rotation was 30 degrees to the right and 25 degrees
to the left.

(R. at 753).

During the examination, Mr. Arzu had a

normal gait, and he was able to change his clothes and get on and
off the examination table without assistance.

(R. at 753).

Dr.

Edynak concluded that Mr. Arzu’s prognosis was “fair,” and that he
had mild to moderate limitations with sitting, standing, walking,
climbing stairs, bending, carrying, and heavy lifting because of
his chronic low back pain and prior surgery for scoliosis.

(R. at

754).
From May 10, 2010, the date of Dr. Edynak’s examination, until
April 13, 2011, there are no medical reports or opinions in the
record.

And, from April 13, 2011, until April 1, 2012, the date an

Administrative Law Judge found the plaintiff to be disabled, the
9

only medical evidence in the record comes from Dr. Luciano Tuluca.
Dr. Tuluca is a pain management specialist and is board certified
in physical medicine and rehabilitation.

(R. at 718).

On April 13, 2011, Mr. Arzu saw Dr. Tuluca for low back pain
radiating to his left lower extremity. Dr. Tuluca examined him and
found that his coordination was intact but his gait was abnormal.
Dr. Tuluca recommended epidural steroid injections and EMG testing.
(R. at 758).

Twelve days later, Mr. Arzu again visited Dr. Tuluca

complaining of low back pain radiating to his left lower extremity.
Dr. Tuluca determined that motor strength was -3/5 in the left
lower extremity.

(R. at 760-61).

A lumbar epidural steroid injection was administered by Dr.
Tuluca on May 12, 2011. (R. at 762-63).

Three additional steroid

injections were administered on June 15, 2011, July 27, 2011, and
November 16, 2011.

(R. at 768-69, 772-73, 778-79).

After each of

these treatments, Mr. Arzu reported a reduction in his pain level.
For example, on May 27, 2011, he rated his pain at 3 out of 10
following the May 12 injection, and he was walking and sleeping
better.

(R. at 764-65).

On June 29, 2011, Mr. Arzu told Dr.

Tuluca that he was able to walk without an assistive device
following the June 15 injection and was sleeping well. (R. at 77071).

On August 17, 2011, he reported an 80 percent improvement in

his pain level following the July 27 injection, and his motor
10

strength was 4/5 in the lower extremities.

(R. at 774-75).

And on

December 6, 2011, Mr. Arzu reported 90 percent relief following the
November 16 injection, his motor strength was 5/5 in the lower
extremities, and straight leg raising was negative.

(R. at 780-

81).
However, in between the epidural steroid injections, Mr.
Arzu’s pain increased, his physical capabilities diminished, and
additional clinical presentations appeared.

On June 6, 2011, he

underwent a magnetic resonance imaging of the lumbar spine.

The

MRI revealed L4-5 disc herniation which was deforming the thecal
sac.

There was also a L5-S1 disc bulge and prominent disc

degenerative changes at both L4-5 and L5-S1.

(R. at 720).

The

examiner noted marked levoscoliosis and a right proximal neural
foraminal extension approaching the exiting right L5 nerve root.
(R. at 721).

Two days later, Mr. Arzu saw Dr. Tuluca and reported

that he was unable to sit or stand for long periods of time.

(R.

at 766).

An exam revealed 3/5 motor strength in the left lower

extremity

and

4/5

in

the

right

lower

extremity.

There

was

tenderness to palpation, and straight leg raising was positive on
the right side.

(R. at 767).

On October 5, 2011, Mr. Arzu

reported 80 percent relief and he said he was ambulating normally,
yet still experiencing low back pain which radiated to the lower
left extremity.

Motor strength was 4/5 for the lower extremities,
11

and straight leg raising was positive on the left side.
776-77).

(R. at

On January 17, 2012, Mr. Arzu told Dr. Tuluca that the

pain was tolerable, although it prevented him from sleeping on his
right side.

(R. at 782).

On February 28, 2012 Mr. Arzu reported

that he still had pain whenever he walked or stood for an extended
period of time.

And he was feeling numbness and tingling in his

lower extremities.

(R. at 783).

On February 29, 2012, Mr. Arzu had an x-ray on his knees which
showed bilateral patella variants with subluxations.6

There was

minimal narrowing of bilateral medial compartments and left thigh
densities resembling gunshot fragments.

Additionally, the x-ray

revealed calcium deposits behind the right knee joint.

(R. at

749).
Dr. Tuluca again examined Mr. Arzu on March 21, 2012.

The

plaintiff reported that he was doing better but complained of
bilateral aching and burning knee pain.

The pain went from the

thigh to the knee, and straight leg raising was positive on the
right side.

(R. at 784-85).

Dr. Tuluca wrote two letters contained in the record.

6

One is

A patellar subluxation is a partial dislocation of the
kneecap. See University of Connecticut Musculoskeletal Institute,
at
Patellar
Dislocation,
available
http://www.nemsi.uchc.edu/clinical_services/orthopaedic/knee/pate
llar_dislocation.html (last visited March 25, 2015).
12

dated June 7, 2011; the other, March 21, 2012.

The first letter is

addressed “To Whom It May Concern” and provides a brief recitation
of

Mr.

Arzu’s

performed

by

medical
Dr.

history

Tuluca.

and

At

the

a

description

time

of

the

of

an

exam

letter,

the

plaintiff’s hip flexion was only 40 to 50 degrees and hip extension
was 10 to 15 degrees.

(R. at 717).

Muscle strength was rated as

4/5 in the right lower extremity and -3/5 in the left lower
extremity. Straight leg raising was positive at 40 degrees.

There

was positive tenderness at L4-S1, and Mr. Arzu’s gait was abnormal.
(R. at 717).

Dr. Tuluca stated that “the patient is totally

disabled and unable to perform any job . . . .”

(R. at 718).

The second letter is a word-for-word replica of the first
letter.

Every word, number, and punctuation mark in the March 21,

2012 letter is the same as the June 7, 2011 letter.

Only the date

was changed. (R. at 717-18, 756-57).
D. Medical History After April 1, 2012
On April 16, 2012, Mr. Arzu was again examined by Dr. Tuluca.
(R. at 722-25). During the examination, he walked with an antalgic
gait and his motor strength in the right hip, knee, and ankle was
rated at 3/5.

(R. at 724).

Dr. Tuluca performed certain “special

tests” on the right lower extremity: the femoral nerve traction
test, Patrick-Fabere test, and the supine straight leg raising test
were all positive.

(R. at 724).
13

Dr. Tuluca ordered another

epidural

injection.

electromyography

(R.

(“EMG”)

at

724).

revealed

Seven

days

abnormalities

in

later,
the

an

left

peroneal motor nerve, the left and right tibial motor nerves, the
left and right sup peron sensory nerves, and the left and right
sural sensory nerves.
normal

limits,

instability.

and

(R. at 787).
muscles

showed

All other nerves were within
no

evidence

of

electrical

(R. at 787).

In May 2012, Mr. Arzu reported significant reductions in his
pain level.

On May 7, he described excellent pain relief, and on

May 24, he reported that his knee pain was 50 percent better after
an injection.

(R. at 726, 730).

Yet, he still complained of

limited mobility and severe pain when climbing stairs and walking.
(R. at 726, 730).

Also on May 24, Dr. Tuluca completed a medical

source statement. In that statement, he opined that Mr. Arzu could
sit for less than one hour, and stand or walk for less than one
hour in an eight-hour day.

(R. at 790-91).

Additionally, Dr.

Tuluca recommended that Mr. Arzu rest for two hours during an
eight-hour work day.

(R. at 791).

On June 5, 2012, Dr. Tuluca saw the plaintiff and found
decreased sensation of the right upper and lower thigh, and reduced
range of motion of the right knee to 15 degrees.

(R. at 734-35).

Mr. Arzu told Dr. Tuluca that he was feeling pain, numbness,
buckling, and instability when standing, walking, and going up or
14

down stairs.

(R. at 735).

Dr. Tuluca noted that Mr. Arzu’s pain

was no longer improving with injections.

(R. at 736).

Mr. Arzu received another epidural steroid injection on July
19, 2012.

(R. at 739-40).

At that time his motor strength was

rated as 3/5 in the right ankle, straight leg raising was positive,
and extension was limited.

(R. at 739).

One month after the

injection, Mr. Arzu reported pain relief from both the steroids and
his medication.

He still complained of pain, weakness, and

numbness in his lower back, and straight leg raising was positive.
(R. at 742-43).

On September 12, 2012, Mr. Arzu again reported

pain relief from the July injection.

(R. at 746).

Mr. Arzu first saw Dr. Tsai C. Chao on March 16, 2013.

Dr.

Chao observed tenderness and muscle spasm in Mr. Arzu’s back.
Straight leg raising was positive on the right side at 45 degrees,
and there was right calf atrophy.

(R. at 814).

Dr. Chao diagnosed

chronic right discogenic lower back pain with L4-5 herniation,
right sacroiliac joint dysfunction, and osteoarthritis of the
knees.

(R. at 815).

E. Procedural History
Mr. Arzu filed a claim for SSI disability benefits on October
10, 2007.

He indicated he became disabled in November 1973 due to

scoliosis and high blood pressure.

(R. at 101).

was denied on November 29, 2007.

(R. at 73-76).

15

That application
The plaintiff

sought review and on September 17, 2009, he appeared pro se for a
hearing before administrative law judge (“ALJ”) Paul A. Heyman.
(R. at 49).

At that hearing, Mr. Arzu testified that he could only

walk approximately five blocks before needing rest, though he
occasionally took his daughters to the park. (R. at 60, 66).

He

testified that he did not drink alcohol, but he had gained weight
recently.

(R. at 53, 66).

Mr. Arzu stated that he could travel by

bus, and his medication made him drowsy.

(R. at 55, 59).

ALJ

Heyman issued a decision denying the application on February 19,
2010.

(R. at 35-44).

On April 5, 2012, that decision became final

when the Appeals Council denied Mr. Arzu’s request for further
review.

(R. at 1).

The plaintiff then filed a civil action in the

United States District Court for the Southern District of New York.
And on November 4, 2012, the District Court remanded the case to
the Commissioner for further proceedings pursuant to a stipulation.
(R. at 438-40.)
While that case was pending, Mr. Arzu submitted a second
application for SSI disability benefits on April 8, 2010.
465).

The second claim was also denied, and on June 11, 2012, he

appeared at a hearing before ALJ Selwyn C. Walters.
96).

(R. at

(R. at 470-

ALJ Walters issued a decision denying Mr. Arzu’s claim on

July 13, 2012.

(R. at 444-57).

Meanwhile, the original 2007 claim was remanded by the SSA
16

Appeals Council for another administrative hearing.
took place on September 4, 2013.

(R. at 497-538).

consolidated the two cases and reviewed them de novo.
01).

That hearing
ALJ Walters
(R. at 500-

At the 2013 hearing, Mr. Arzu testified that he could only

walk approximately one and one-half blocks before resting, and he
reported that he could only sit for 45 minutes before having to
stand and stretch.

(R. at 491, 513).

He also stated that his

lower back and leg pain required him to lie down several times each
day.

(R. at 493).

On

December

5, 2013, ALJ Walters issued a

decision which found that from October 10, 2007, through March 31,
2012, the plaintiff was not disabled, but that since April 1, 2012,
the plaintiff has been disabled.

(R. at 409-25).

This action

followed.
Analytical Framework
A.

Determination of Disability

A claimant is disabled under the Act and therefore entitled to
benefits if he can demonstrate through medical evidence that he is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); see also Hahn v. Astrue, No. 08
Civ. 4261, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009); Marrero
17

v. Apfel, 87 F. Supp. 2d 340, 345-46 (S.D.N.Y. 2000).

The

disability must be of “such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2)(A).
The SSA has created a five-step procedure for evaluating
claims for Supplemental Social Security Income and Disability
Insurance Benefits (“DIB”).

20 C.F.R. §§ 404.1520, 416.920.

First, the claimant must demonstrate that he is not currently
engaged

in

a

substantial

gainful

activity.

20

C.F.R.

§§

404.1520(b), 416.920(b). Next, the claimant must prove that he has
a severe impairment that “significantly limits his physical or
mental

ability

to

do

basic

404.1520(c), 416.920(c).

work

activities.”

20

C.F.R.

§§

Then, if the impairment is listed in 20

C.F.R. Part 404, Subpart P, Appendix 1 or is the substantial
equivalent of a listed impairment, the claimant is automatically
considered

disabled.

20

C.F.R.

§§

404.1520(d),

416.920(d).

However, if the claimant’s impairment is neither listed nor equals
any listed impairment, he must prove that he does not have the
residual

capacity

to

perform

404.1520(e), 416.920(e).

his

past

work.

20

C.F.R.

§§

Finally, if the claimant satisfies his

burden of proof on the first four steps, the burden shifts to the
18

Commissioner to demonstrate that there is alternative substantial
gainful employment in the national economy that the claimant can
perform.

20 C.F.R. § 404.1520(a)(4)(v), (g); Longbardi v. Astrue,

No. 07 Civ. 5952, 2009 WL 50140, at *23 (S.D.N.Y. Jan. 7, 2009)
(citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), and Bapp
v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)).

In order to determine

whether

substantial,

the

claimant

can

perform

other

gainful

employment, the Commissioner must consider objective medical facts,
diagnoses or medical opinions based on these facts, subjective
evidence of pain or disability, and the claimant’s educational
background, age, and work experience. Hahn, 2009 WL 1490775, at *7
(citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per
curiam)).
B.

Judicial Review

A court reviewing the Commissioner’s decision “‘may set aside
a decision of the Commissioner if it is based on legal error or if
it is not supported by substantial evidence.’”

Hahn, 2009 WL

1490775, at *6 (quoting Bonet v. Astrue, No. 05 Civ. 2970, 2008 WL
4058705, at *2 (S.D.N.Y. Aug. 22, 2008)).
therefore, involves two levels of inquiry.

Judicial review,

First, the court must

decide whether the Commissioner applied the correct legal standard.
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v.
Barnhart, No. 05 Civ. 4254, 2008 WL 4452359, at *8 (S.D.N.Y. April
19

29, 2008).

Second, the court must decide whether the ALJ’s

decision was supported by substantial evidence.
whether

substantial

evidence

exists,

a

“In determining

reviewing

court

must

consider the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also
include that which detracts from its weight.”

Longbardi, 2009 WL

50140, at *21 (citing Brown, 174 F.3d at 62, and Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988)).

Substantial evidence in this

context is “‘more than a mere scintilla.

It means such relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.’”

Hahn, 2009 WL 1490775, at *6 (quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971)); see also Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam).

“If

substantial evidence supports the Commissioner’s decision, then it
must be upheld, even if substantial evidence also supports the
contrary result.”

Ventura v. Barnhart, No. 04 Civ. 9018, 2006 WL

399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990)).

Additionally, the Act provides

that the Commissioner’s findings “as to any fact, if supported by
substantial evidence, shall be conclusive.”
C.

42 U.S.C. § 405(g).

The ALJ’s Decision

As detailed above, the Act sets out a five-step evaluation
process to determine whether claimants are disabled.
20

20 C.F.R. §

416.920(a).

ALJ Walters determined at step one that Mr. Arzu had

not engaged in substantial gainful activity since October 10, 2007,
the application date.

(R. at 414).

At step two, he found that the

plaintiff’s spinal stenosis and the osteoarthritis in his knees
were

“severe.”

(R.

at

414).

At

the

third

step,

the

ALJ

“considered” the listing for disorders of the spine under the SSA
regulations appendix, 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.04A.
(R. at 415).

But ultimately, he determined that the plaintiff’s

impairments did not meet or medically equal the severity of any
listed impairment because of the lack of “sufficient and sustained
neurological signs.” (R. at 415). At step four, the ALJ found that
from October 10, 2007, the date of the application, until April 1,
2012, the plaintiff had the residual functional capacity to perform
a

full

range

of

sedentary

work,

except

that

occasionally stoop, crouch, and climb stairs.

he

could

only

Additionally, he

found that as of April 1, 2012, the plaintiff has been unable to
meet the requirements of sedentary work, and has thus been disabled
since that date.

(R. at 415, 424).

In making this determination,

the ALJ assigned “significant weight” to the opinions of Dr.
Sheikh, Dr. Glassneer, Dr. Hadley and Dr. Edynak, which were
rendered

between

November

2007

and

May

2010.

(R.

at

420).

Additionally, the ALJ “accepted” the January 5, 2010, opinion of
Dr. Stanley and gave it significant weight except for the portion
21

of his opinion which included restrictions on walking up to 20
minutes and stooping. That part of Dr. Stanley’s opinion was given
“some, but not significant weight.”

(R. at 418).

Moreover, ALJ

Walters did not accord the opinion of Dr. Tuluca significant
weight.

He gave Dr. Tuluca’s opinion prior to April 2012 “little

weight,” and his opinion since April 2012 “some weight.”
421).

(R. at

At step four, the ALJ found that the plaintiff had no past

relevant work experience. (R. at 424).

And, after considering the

plaintiff’s residual functional capacity to perform sedentary work,
his age, education and work experience, the ALJ held that the
plaintiff was not disabled from October 10, 2007, through March 31,
2012.

However, since April 1, 2012, the ALJ found that the

plaintiff has been disabled.

(R. at 424).

Discussion
A.

Treating Physician Rule

The

SSA

regulations

establish

that

“the

opinion

of

a

claimant’s treating physician as to the nature and severity of the
impairment is given ‘controlling weight’ so long as it ‘is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.’”

Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008) (alteration in original) (quoting
20 C.F.R. § 404.1527(d)(2)); accord Green-Younger v. Barnhart, 335
22

F.3d 99, 106 (2d Cir. 2003); Correale-Englehart v. Astrue, 687 F.
Supp. 2d 396, 426 (S.D.N.Y. 2010).

“This preference is generally

justified because treating sources are likely to be ‘the medical
professionals

most

able

to

provide

a

detailed,

longitudinal

picture’ of a plaintiff’s medical impairments and offer a unique
perspective that the medical tests and SSA consultants are unable
to obtain or communicate.”

Correale-Engelhart, 687 F. Supp. 2d at

426 (quoting 20 C.F.R. § 416.927(d)(2)). However, determination of
“dispositive” issues, such as whether the plaintiff “meet[s] the
statutory definition of disability” and cannot work, are reserved
for the Commissioner.

20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1);

see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
If the ALJ determines that a treating physician’s opinion is
not controlling, he is nevertheless required to consider the
following factors in determining the weight to be given to that
opinion: (1) the length of the treatment relationship and the
frequency

of

examination;

(2)

the

nature

and

extent

of

the

relationship; (3) the evidence provided to support the treating
physician’s opinion; (4) the consistency of the opinion with the
record as a whole; (5) whether the opinion is from a specialist;
and (6) other factors brought to the Commissioner’s attention that
tend

to

support

or

contradict

the

opinion.

20

C.F.R.

§

404.1527(c); see Halloran, 362 F.3d at 32. The ALJ is not required
23

to give the treating physician controlling weight, but he is
required to give “good reasons” for the assignment of weight that
he chooses.
issue

of

20 C.F.R. § 404.1527(c)(2).

disability

to

the

“Reserving the ultimate

Commissioner

relieves

the

Social

Security Administration of having to credit a doctor’s finding of
disability, but it does not exempt administrative decisionmakers
from their obligation . . . to explain why a treating physician's
opinions are not being credited.”

Snell, 177 F.3d at 134.

The requirement of reason-giving exists, in part, to let
claimants understand the disposition of their cases, even
-- and perhaps especially -- when those dispositions are
unfavorable.
A claimant . . . who knows that [his]
physician has deemed [him] disabled[] might be especially
bewildered when told by an administrative bureaucracy
that [he] is not, unless some reason for the agency’s
decision is supplied. [A claimant] is not entitled to
have [his physician]’s opinion on the ultimate question
of disability be treated as controlling, but [he] is
entitled to be told why the Commissioner has decided -as under appropriate circumstances is his right -- to
disagree with [the treating physician].
Id. (internal citation omitted)(remanding case to Appeals Council
for statement of reasons why treating physician’s finding of
disability was rejected).
Here, ALJ Walters found that the plaintiff had the residual
functional capacity to perform a full range of sedentary work from
the date of his application, October 10, 2007, until April 1, 2012,
and thus, was not disabled during that period, but also found that
the plaintiff has been disabled since April 1, 2012.
24

(R. at 424).

In making this determination, the ALJ assigned “little weight” to
the opinion of Dr. Tuluca prior to April 1, 2012 because, according
to the ALJ, that opinion did not comport with other contemporaneous
medical reports compiled by Dr. Tuluca himself.

(R. at 421).

Additionally, the ALJ accepted Dr. Stanley’s entire opinion except
for the portion which imposed limitations on Mr. Arzu’s ability to
walk and stoop because of internal inconsistencies within that
opinion.

(R. at 417).

Yet, when examined in light of the entire

record, the ALJ’s reasons for finding inconsistency in these two
opinions are not supported by substantial evidence.
1.

Treating Physicians Prior to 2010

ALJ Walters accorded Dr. Sheikh’s opinion controlling weight,
and that decision is supported by substantial evidence.

Dr.

Sheikh’s determination that the plaintiff had mild limitations
concerning only pushing, pulling, and lifting is buttressed by
other medical evidence from 2007.

During various visits to the

Hospital for Joint Diseases, Mr. Arzu had “good toe-walk [and]
heel-walk,” and he reported that his symptoms were getting better.
(R. at 141-43).

The fact that Mr. Arzu returned to work sometime

before March 2008 further supports the ALJ’s conclusion that he had
the residual functional capacity to perform sedentary work. (R. at
810).
During the years of 2008 and 2009, the administrative record
25

shows that Mr. Arzu saw at least six doctors at the Hospital for
Joint Diseases and underwent numerous diagnostic and therapeutic
procedures.

Each visit was for low back pain, and the reports

generally showed that with treatment, the pain subsided.

Each

doctor prescribed physical therapy, and there were no significant
physical limitations identified.

Specifically, Dr. Glassneer and

Dr. Hadley advised Mr. Arzu that he could return to work so long as
refrained from any heavy lifting.

(R. at 808, 812.)

These two

physicians were singled out by the ALJ, and he accorded their
opinions “significant weight.”

(R. at 420).

This is relevant

because Drs. Glassneer and Hadley provided direct evidence that the
plaintiff

had

sedentary work.

the

residual

functional

capacity

for

at

least

Additionally, Mr. Arzu testified at a hearing on

September 17, 2009, that he was “doing a lot of stuff.”

When asked

to clarify, he responded, “I clean the house. Sometimes I have to
mop, sweep, because I live by myself.”

(R. at 65).

None of the

doctors seen by Mr. Arzu in 2008 or 2009 reported any specific
walking, standing, or sitting limitations. Moreover, the plaintiff
testified at the hearing in 2009 that he could walk five blocks
before needing rest, and he made no mention of any limitations with
regards to sitting.

(R. at 60).

The claimant has the burden to bring forward medical evidence
demonstrating disability. 42 U.S.C. § 423(d)(5)(A); see also Bowen
26

v. Yuckert, 482 U.S. 137, 146 (1987).
in

the

record,

coupled

with

the

Here, the medical evidence
plaintiff’s

own

testimony

concerning his physical capabilities, provides substantial evidence
for

the

ALJ’s

functional

determination

capacity

to

that

perform

Mr.

Arzu

sedentary

had

the

work.

residual

Accordingly,

because there is substantial evidence to support the opinions of
the

treating

physicians

prior

to

2010,

ALJ

Walters

properly

determined that Mr. Arzu had the residual functional capacity to
perform sedentary work within that time period.
2.

Opinion of Dr. T. Stanley

On January 5, 2010, Dr. Stanley filled out a medical source
statement after examining Mr. Arzu. ALJ Walters gave Dr. Stanley’s
opinion

significant

weight

apart

from

two

specific

concerning the plaintiff’s physical limitations.

findings

(R. at 417-18).

Those limitations were that Mr. Arzu could “never” stoop, and that
he could only walk for a total of 20 minutes in an eight-hour day.
(R. at 396, 398).

The ALJ accorded Dr. Stanley’s opinion as to

these limitations “some, but not significant, weight.”
418).

An

ALJ

is

permitted

to

assign

weight

physician’s opinion that is less than controlling.

to

a

(R. at
treating

However, when

doing so the ALJ must “comprehensively set forth reasons for the
weight assigned.”

Halloran, 362 F.3d at 33.

ALJ Walters gave two

reasons for discounting the two limitations in Dr. Stanley’s
27

opinion.

First, he found that these restrictions did not comport

with the “clinical examinations discussed above.”

(R. at 417).

And second, he noted that, in the same report, Dr. Stanley opined
that the plaintiff could shop, use public transportation, and
travel unaccompanied.

(R. at 417).

The ALJ believed that these

differing evaluations conflicted and could not both be accurate.
The ALJ’s first contention is that the limitations reported by
Dr. Stanley are contradicted by other medical evidence “discussed
above.”

(R. at 417.)

This is in reference to the numerous reports

compiled by the doctors at the Hospital for Joint Diseases from
2007 through 2009.

Yet, as previously noted, none of the doctors

from the Hospital for Joint Diseases who saw Mr. Arzu in 2008 and
2009 reported or opined on his walking capability.

Because they

did not make any assessments concerning the plaintiff’s walking
capability, their opinions cannot be construed as evidence that Dr.
Stanley’s
deficient.

opinion

on

the

plaintiff’s

walking

capability

is

Affirmative evidence, rather than mere silence on a

relevant issue, is required to find that a claimant is capable of
performing sedentary work. See Rosa, 168 F.3d at 80-81. Moreover,
the ALJ relied on the opinions from doctors who examined Mr. Arzu
up to two years prior to Dr. Stanley in order to conclude that he
was not disabled in January 2010.

By doing so, the AlJ did not

take into account the deterioration of Mr. Arzu’s condition over
28

time.
Next, in rejecting Dr. Stanley’s opinion that the plaintiff
could only walk for 20 minutes in and eight-hour day, the ALJ
pointed to another of Dr. Stanley’s opinions from the same report.
Dr. Stanley opined that Mr. Arzu had the capability to shop and use
public transportation, and the ALJ believed that if the plaintiff
could perform those activities, it showed that the could in fact
walk for more than 20 minutes.
substantial evidence.

(R. at 420).

That is not

If an ALJ believes a doctor’s report to be

inconsistent or insufficient, then he has the affirmative duty to
seek clarification before rejecting the opinion.

See Stroud v.

Commissioner of Social Security, No. 13 Civ. 3251, 2014 WL 4652581,
at *10 & n.10 (S.D.N.Y. Sept. 8, 2014); Correale-Englehart, 687 F.
Supp. 2d at 428.
alleged

Here, the ALJ did not seek clarification for the

contradiction.

And,

it

appears

that

there

is

no

contradiction. There is no evidence in the record to indicate that
using public transportation is inconsistent with a 20 minute
walking limitation.

Neither of the ALJ’s reasons for discounting

Dr. Stanley’s opinion is based on substantial evidence.
Because

there

is

not

substantial

evidence

to

support

discounting Dr. Stanley’s opinion, it should be accepted and used
to determine Mr. Arzu’s disability.

The SSA regulations define

sedentary work to require sitting, and “occasionally” walking and
29

standing.

20 C.F.R. § 404.1567(a).

For sedentary work, walking

and standing should total no more than two hours in an eight-hour
work day and sitting should total approximately six hours in an
eight-hour day.

See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)

(citing Social Security Ruling 83-10).

Because a person must be

able to stand or walk for up to two hours to perform sedentary
work, a treating physician’s determination that a claimant can walk
for less than two hours could be dispositive.
Astrue, 380 F. App’x 50, 51 (2d Cir. 2010).

See Carvey v.

Consequently, since

Dr. Stanley’s opinion that Mr. Arzu could not walk more than 20
minutes in an eight-hour day should be given controlling weight,
the plaintiff did not have the residual functional capacity to
perform sedentary work.
3. Opinion of Dr. Eugene Edynak
ALJ Walters gave the opinion of Dr. Edynak, a consultative
examiner, “significant weight.”

(R. at 420).

In his report, Dr.

Edynak

evaluations,

which

makes

numerous

medical

are

neither

contested by the parties nor questioned by the ALJ. The issue with
the opinion arises because Dr. Edynak identified Mr. Arzu as having
“mild to moderate limitation with sitting, standing, walking,
climbing stairs, bending, carrying, and heavy lifting because of
his chronic low back pain and status post repair of scoliosis.”
(R. at 754).

Neither the defendant nor the ALJ discusses this
30

“mild to moderate” limitation in any detail.

The plaintiff,

however, argues that such a limitation on sitting and standing
precludes him from performing sedentary work, as sedentary work
requires up to two hours of standing and six hours of sitting.
(Pl. Memo. at 24).
moderate”

However, it is unclear whether “mild to

limitations

precludes

a

claimant

sedentary work under these definitions.
such

vague

speculation.”

determinations

are

from

performing

In fact, the meaning of

“left

to

the

ALJ’s

sheer

Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013).

The ALJ used the entirety of Dr Edynak’s opinion as evidence that
Mr. Arzu had the residual functional capacity to perform sedentary
work. Yet, the opinion appears to support the opposite conclusion.
Moderate sitting, walking, and standing limitations could prevent
one from standing and walking up to two hours in an eight-hour day.
And

in

this

case,

a

“moderate”

limitation

does

not

clearly

contradict Dr. Stanley’s prior determination that Mr. Arzu could
only walk for 20 minutes in an eight-hour day.

Accordingly, Dr.

Edynak’s opinion is not substantial evidence for a finding that Mr.
Arzu has the residual functional capacity to perform sedentary
work.
4. Opinion of Dr. Luciano Tuluca
ALJ Walters assigned “little weight” to the opinion of Dr.
Tuluca prior to April 1, 2012.

He also wrote that Dr. Tuluca’s
31

opinion concerning the plaintiff’s standing, walking, and sitting
limitations was “disingenuous and seems to be designed to ensure
that the claimant is found disabled.”

(R. at 421).

Dr. Tuluca’s

written opinions that Mr. Arzu was totally disabled intrude on
decisions reserved to the Commissioner.

Specifically, the SSA

regulations note that opinions on whether a claimant is disabled
are

not

medical

opinions,

rather

they

are

issues

dispositive of a case and left to the Commissioner.
416.927(d)(1).

which

are

20 C.F.R. §

Thus, Dr. Tuluca’s letters from June 7, 2011 and

March 21, 2012, are not entitled to any special deference.

See 20

C.F.R. § 416.927(d)(3).
However,

Dr.

Tuluca’s

opinions

contained

within

medical

reports from the time he began seeing Mr. Arzu on April 13, 2011,
until April 1, 2012, are entitled to controlling weight so long as
they are well supported and are not inconsistent with other
substantial evidence.

20 C.F.R. § 416.927(c)(2).

And, as noted

above, from May 10, 2010, until April 1, 2012, Dr. Tuluca’s
examination reports are the only medical evidence in the record.
Thus, inconsistencies could come only from Dr. Tuluca’s other
medical reports.
one.

And that is where the ALJ purports to have found

He notes Mr. Arzu’s “dramatic clinical improvement” observed

at several examinations near the end of 2011 and the beginning of
2012.

(R. at 421).

And he uses these improvements to conclude
32

that the plaintiff’s pain was not accompanied by the “medical signs
or laboratory findings” required by 20 C.F.R. § 404.1529.

While

the plaintiff did report improvements on those dates, the ALJ fails
to discuss the timing of those visits or their relation to the
various treatments prescribed by Dr. Tuluca.

From May to November

2011, Mr. Arzu received four epidural steroid injections from Dr.
Tuluca.

And each positive examination cited by the ALJ occurred

not more than three weeks after an administration.

Mr. Arzu

acknowledged that the injections provided relief from his back
pain, but he testified that eventually, the effects of the steroids
wore off such that the pain returned to previous levels.

(R. at

494-95). That testimony is supported by Dr. Tuluca’s reports. And
those reports provide the objective medical evidence required to
demonstrate disability.

During visits that did not occur shortly

after steroid injections, clinical manifestation of diminished
capacity returned.

Each of these exams revealed positive straight

leg raising and ratings of less than 5/5 motor strength in the
lower extremities. Additionally, Mr. Arzu reported new symptoms of
numbness accompanied by new structural abnormalities.

An MRI from

June 7, 2011, revealed “[p]rominent disc degenerative changes” at
both L4-5 and L5-S1.

(R. at 720).

This represents an increase in

severity when compared to the results from an MRI performed on
April 26, 2009, which revealed only “mild to moderate” degenerative
33

changes at L5-S1.

(R. at 804).

Such new physical manifestations

are substantial evidence of the plaintiff’s pain, loss of function,
and inability to ambulate effectively.
Accordingly, there is not sufficient evidence for the ALJ to
discount Dr. Tuluca’s opinion. Dr. Tuluca’s clinical records, when
viewed in light of the entire record, do not support the conclusion
that Mr. Arzu had the capability to perform sedentary work from
January 2010 to April 1, 2012.
B.

Remedy

Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ's decision with or without
remanding the case for a rehearing.

Here, the ALJ’s decision that

Mr. Arzu was not disabled from October 10, 2007, until January 4,
2010, is supported by substantial evidence, and is affirmed.
However, the ALJ’s decision that Mr. Arzu was not disabled from
January

5,

2010

until

March

31,

2012

is

not

supported

by

substantial evidence and must be reversed. Since the plaintiff has
shown he is entitled to disability insurance benefits, the case
shall be remanded to the Commissioner for computation and award of
benefits for the time period indicated.
Conclusion
For the reasons set forth above, the plaintiff’s motion for
judgment

on

the

pleadings

(Docket
34

no.

14)

is

granted,

the

defendant's cross-motion (Docket no. 19) is denied, and the case is
remanded

to

the

Commissioner

solely

for

the

calculation

benefits.
SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
April 1, 2015
Copies mailed this date:
Christopher J. Bowes, Esq.
54 Cobblestone Dr.
Shoreham, NY 11786
Leslie A. Ramirez-Fisher, Esq.
Assistant U.S. Attorney
86 Chambers Street, 3rd Floor
New York, NY 10007

35

of